Opinion
C097930
12-06-2023
C.R., Plaintiff and Respondent, v. M.R., Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 2022-FL0061328)
EARL, P. J.
Appellant M.R. appeals from a domestic violence restraining order issued by Commissioner Susan A. Rados. Appellant contends the order violates article VI, section 21 of the California Constitution and section 259, subdivision (d) of the Code of Civil Procedure because he never consented to have the cause tried by a commissioner acting as a temporary judge. Respondent offered no evidence in the trial court of any such stipulation and has not filed a brief in this appeal. Nor do we see evidence the parties stipulated to have a commissioner hear the petition. Accordingly, we will reverse the trial court's order.
FACTUAL BACKGROUND
Respondent C.R. filed a request for a domestic violence restraining order against appellant on September 6, 2022, along with a request for a temporary restraining order pending a hearing. (See Fam. Code, § 6200 et seq.) Commissioner Rados granted a temporary restraining order the same day, electronically signing the order in the section labeled "Judge's Signature" on the line labeled "Judge or Judicial Officer." Neither the order nor the accompanying electronic signature certificate indicated Commissioner Rados was a court commissioner, rather than a superior court judge. Commissioner Rados likewise signed the "Notice of Hearing" on the line labeled "Judicial Officer," without indicating she was a court commissioner.
The minute order for the first hearing, held September 20, 2022, lists "Rados, Susan A." as the "Assigned Judge" and refers to her as the "Court." On October 25, 2022, the trial court issued a "Notice of Assigned Judge" that indicated that "Hon. Susan A. Rados has been assigned to hear this matter for all purposes." Subsequent minute orders continue to refer to Commissioner Rados as the "Assigned Judge."
Commissioner Rados presided over the hearing on respondent's request for a domestic violence restraining order on November 8 and November 10, 2022. The record from those hearings does not reflect that Commissioner Rados ever identified herself as a commissioner at the beginning of the hearing or after confirming the court reporter was reporting.
Not until issuing a restraining order after the hearing on December 2, 2022, did Commissioner Rados identify herself as "Court Commissioner," on an additional page appended to the form order and at the end of the statement of decision. The December 2, 2022, restraining order required appellant: (1) not to abuse respondent or their son, (2) not to own or possess firearms, (3) to return any of respondent's or their son's property still in appellant's possession, and (4) to have only supervised visitation in California with their son. The order would expire one year later, on December 2, 2023. The court found no substantial evidence appellant had sexually abused the parties' son.
On December 20, 2022, appellant filed a motion to set aside a void order or judgment on the ground that the parties had not stipulated to Commissioner Rados acting as a temporary judge in the matter. Respondent filed an opposition brief on January 6, 2023, arguing: "Commissioner Rados consistently presents her disclosure as a Commissioner as she takes the bench. This case is no exception. The disclosure was given upon Commissioner Rados taking the bench on November 8, 2022, in this matter. The Parties and Attorneys orally agreed to have her hear the matter." The only piece of evidence referenced in respondent's argument was the "Notice of Assigned Judge" issued on October 25, 2022. In his reply brief, appellant also noted that the court's online docket listed "Susan A. Rados" as the "Judge" assigned to the case.
At the hearing on appellant's motion to set aside the order, the court asked the parties to stipulate to Commissioner Rados hearing the matter. Respondent's attorney signed the "Consent for Court Assignment" form, consenting to Commissioner Rados hearing the matter, but appellant did not. The court denied respondent's motion in a minute order without any written explanation.
Respondent timely appealed from the December 2, 2022, order.
DISCUSSION
Section 21 of article VI of the California Constitution provides: "On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause." (Cal. Const., art. VI, § 21; accord Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351, 359-360; see also Code Civ. Proc., § 259, subd. (d).) In other words, "a stipulation of the parties [is] constitutionally required for one not occupying the office of judge to serve as a temporary judge." (People v. Tijerina (1969) 1 Cal.3d 41, 48.) "California appellate courts have reversed and voided actions taken by commissioners where no stipulation appeared on the record." (Michaels v. Turk (2015) 239 Cal.App.4th 1411, 1414-1416 [collecting cases].)
In Michaels, the appellate court reversed a domestic violence restraining order issued by the trial court because "there [wa]s no indication in the record that [the] defendant consented to the commissioner presiding over the hearing on [the] plaintiff's request for a restraining order." (Michaels v. Turk, supra, 239 Cal.App.4th at p. 1416; see id. at p. 1414.) The court rejected the plaintiff's argument that the defendant impliedly consented because it was "common practice for courts to post notices, which state that where parties do not object, they will be deemed to have stipulated to the authority of the commissioner." (Id. at p. 1416.) The court explained: "While there are circumstances where consent may be implied from the actions of a party or her counsel, those actions must be apparent from the record." (Ibid.)
Here, like the court in Michaels, we see no indication in the record that appellant consented to Commissioner Rados presiding over the hearing on respondent's request for a restraining order. The "Consent for Court Assignment" form offered to the parties at the hearing on the motion to set aside the order does not appear elsewhere in the record, none of the papers issued by the superior court identified her as a commissioner - many identified her as a judge - and nobody mentioned her title at the hearing. Respondent offered no evidence in the trial court of any stipulation - express or implied - and has not filed a brief in this appeal. Nor did Commissioner Rados provide a basis for denying appellant's motion to vacate the restraining order. Because we see no evidence that Commissioner Rados was constitutionally authorized to try the case, we conclude her order was void.
Because the parties are involved in ongoing child custody proceedings that may be affected by this decision, we invite the parties to stipulate to the immediate issuance of the remittitur pursuant to California Rules of Court, rule 8.272(c)(1). Because such stipulations, if any, will occur after the issuance of this opinion, we will direct the clerk/executive officer of this court to issue a remittitur immediately upon this court's receipt of stipulations to do so from the parties.
DISPOSITION
The December 2, 2022, order is reversed. Upon the receipt of stipulations for the immediate issuance of this court's remittitur from the parties, pursuant to California Rules of Court, rule 8.272(c)(1), the clerk/executive officer of this court is directed to immediately issue the remittitur. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
We concur: MESIWALA, J., KEITHLEY, J.[*]
[*] Judge of the Butte County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.